Whilst employers are currently putting immense time and effort into making arrangements for the safe return of staff to the workplace following lockdown, they should not lose sight of the importance of consultation with their employees about the associated health and safety issues.
In a recent OnPoint we addressed the issues that employers should consider when making arrangements for the return of staff to the workplace after lockdown, and the panoply of steps they should be considering including the re-design of work spaces, improving cleaning arrangements, staggering of working patterns and other matters.
The Government's guidance on working safely during coronavirus (COVID-19), which has now been updated to reflect the easing of lockdown from 4 July 2020, emphasises the importance of engagement with employees in this context, its view being that "[f]ull involvement of your workers creates a culture where relationships between employers and workers are based on collaboration, trust and joint problem solving." In planning for a safe return to the workplace, employers need to consider how they will engage and consult with staff about their plans. An effective consultation and communication strategy will not only address legal compliance with employers' health and safety consultation obligations. It will also assist in ensuring that employees have confidence that robust and workable working arrangements - to the development of which they may have valuable contributions to make - are being put in place, and that their concerns (about their own situations or more generally) are addressed.
The legal obligation to consult
Employers are under a legal obligation to consult with employees on health and safety matters. Where a trade union is not recognised, these obligations are imposed under the Health and Safety (Consultation with Employees) Regulations 1996 which, in summary, provide that an employer:
- must consult employees "in good time" on matters
relating to their health and safety at work, including the
introduction of any measure at the workplace which may
substantially affect the health and safety of those
- may consult with either its employees directly or elected
health and safety representatives.
- must provide either its employees or their representatives with
information that will enable them "to participate fully and
effectively in the consultation".
Whilst of course employers should remain mindful of these statutory obligations, breach of which can constitute a criminal offence, the focus of the guidance issued about engagement with employees during COVID-19 by the Health and Safety Executive ("HSE") and Acas has been on encouraging consultation and highlighting its benefits. As the HSE notes in its guidance on working safely during COVID-19, by consulting with and involving staff in the steps they are taking to manage the risk of coronavirus in their workplace, employers can explain the changes they are planning, make sure those changes will work, and hear employees' ideas about how to continue to operate their business safely during the outbreak.
What to discuss
The guidance issued by Acas suggests that "it's a good idea to talk about":
- when staff might return to the workplace.
- how staff will travel to and from work.
- how health and safety is being reviewed and managed (at the least by sharing the employer's latest risk assessment).
- any planned adjustments to the workplace, for example additional hand washing; facilities, staggering start and finish times to avoid overcrowding or floor markings to help people keep 2 metres apart.
- if there might be a phased return of the workforce, for example some staff returning before others.
- working from home arrangements.
Consultation in practice
What is appropriate in terms of consultation for a particular employer will largely depend on the size of its employee population and its view of the most effective means of communication and engagement. As the HSE puts it "in a small business, you might choose to consult your workers directly. Larger businesses may consult through a health and safety representative, chosen by your workers or selected by a trade union". The HSE has also issued specific guidance about the process of communicating with staff about these issues.
Employers do also need to feed into their communication process appropriate engagement with individual employees. As part of the process of return to the workplace, employers will need to assess how to address employees' specific concerns about the return process so that they can take employees' concerns, and indeed preferences, into account particularly when devising phased and staggered return to the workplace. This will require individual engagement with employees as well as more general consultation.
Information and guidance
The HSE guidance emphasises the need for clear information and guidance to be provided to staff and for it to be communicated effectively, taking into account the needs of those who do not have English as their first language, have learning difficulties, or who are partially sighted or deaf etc. The HSE makes the point that people often need to hear messages more than once and in different ways to remember and understand what they need to do, and recommends that employers should consider how they can reinforce the information and guidance they provide and check that people have understood and are following it.
Wellbeing and support
Engagement with employees in this context entails the careful handling of individual situations as well as consultation with employees more generally. Both the Acas and HSE guidance highlights the need to address wellbeing and support for employees. In its guidance, Acas recommends that employers should talk to those employees who are anxious about safety and returning to work and to try to resolve concerns together. It notes that people may be concerned about contracting COVID-19 themselves as well as the risks to someone they live with who is shielding or may have childcare concerns. As Acas notes, in these cases, employers may be able to keep someone on furlough, arrange for car parking to avoid use of public transport or stagger working times to avoid peak travel hours. If someone still does not want to go back to work, the employer might agree for them to take annual leave or unpaid leave.
As the HSE guidance notes, employers will also need to be ready to hold further discussions with employees as the situation develops to address issues such as changes to applicable Government guidelines, changes to lockdown restrictions and if their arrangements do not operate as expected.
In these unprecedented circumstances, employees will have real and varied concerns about their safety in relation to returning to the workplace. Their involvement in the planning and implementation of arrangements for return to the workplace – and further changes to reflect subsequent developments - should facilitate a smooth process of return and reduce the risk of disputes about whether employees can be required to return to the workplace. The guidance issued by Acas and the HSE is a useful reminder of the need for employers to ensure that their engagement with their employees is effective, not just to comply with their statutory health and safety consultation requirements, but also to ensure that their plans are developed and communicated effectively and that the concerns of individual employees are handled appropriately.
We would also like to thank Melissa Ayeltigah,
Trainee Solicitor, for her contribution to this
Originally published by Dechert, June 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.